Executive Summary

This report documents the legislative history of .08 per se laws at the state level. It was conducted prior to the October 2000 passage of a federal provision mandating states to enact .08 per se laws by 2004 or otherwise begin losing federal highway construction funds.

To write this legislative history, project staff studied the legislative and political process of six states that either recently lowered their illegal per se laws from .10 to .08 blood alcohol concentration (BAC), or attempted unsuccessfully to enact .08 per se legislation in recent sessions. The following six states were selected for this project: Texas, Washington, Illinois, and Virginia (states that had passed .08 per se legislation), as well as Maryland and Minnesota (states that, at the time of this study, had been attempting to pass this legislation for several years).

The most important criterion for site selection was recent consideration of the legislation. States where .08 legislation was recently introduced logically yielded the most information because contact lists were more current, and project staff were able to locate a larger number of individuals involved in the process, as well as written materials such as reports, analyses and handouts. In addition, contacts' recall was expected to be more accurate if the legislative session was relatively recent.

Aside from recent consideration of the legislation, the site selection process took into account the intensity of the .08 debate in each state. Certain states where .08 per se laws passed in recent years were not selected because the legislation was achieved without much debate in the legislature; thus, these states might not have yielded as much information about obstacles and supporting strategies as other states where the debate was more complex.

In-depth discussions were conducted with a wide range of individuals involved in the political and legislative process at each site. In each of the states, project staff spoke with legislators both for and against .08 per se, as well as lobbyists and representatives from special interest groups on both sides of the issue. State-level agencies such as the Department of Motor Vehicles, the State Police, and the state's Department of Transportation were also consulted. In addition, project staff approached representatives from national organizations such as Mothers Against Drunk Driving (MADD), the Century Council, and the American Beverage Institute (ABI). Although these organizations are national in scope, they generally offer assistance and advice to local chapters at the state level, and therefore, they often play a significant role in the state legislative process.

Participants in the .08 per se debate in the six states made the following observations to project staff:

In states where .08 per se was enacted, both advocates and opponents identified and credited the actions of a key individual who provided strong leadership, who was deeply committed to the issue, and who had the ability to orchestrate the legislative and political process. Advocates said that true leadership from politicians involved a willingness to marshal some of his or her resources to the cause and to become personally active as well. In their view, a mere indication of support by the Governor, for instance, would not have been enough to secure passage of the legislation.

Likewise, when the legislation failed to pass, advocates of .08 per se identified a key committed opponent who was, in their view, able to block passage of the legislation through his or her actions.

Advocacy coalitions were formed in every state. In order to emphasize that .08 per se was an initiative supported by a wide variety of groups, advocates sought the official backing of several organizations representing both public and private interests in the state. Supporters sought to recruit members who possessed not only a strong background and knowledge of impaired driving issues, but also in-depth knowledge of the political process in their respective states.

In all six states, the opposition was represented in the State Legislature by one or more professional lobbyists. Experienced local lobbyists were considered to be a great asset for the following reasons: they were thoroughly familiar with the state's political process and legislative procedures; they knew who the key legislators were on which key committees; and they understood the background and interests of these legislators. Both advocates and opponents of the bill believed that a good lobbyist could anticipate a state representative's reaction to a particular bill or issue, and he or she would know who the other party would most likely approach for support.

In states where .08 per se legislation was enacted, legislators from both major political parties worked in cooperation to sponsor the bill and seek the support of their political caucuses.

In all six states, advocacy groups worked to mobilize impaired driving victims and others. Advocates said that victims' testimonies provided a more personal and emotional element to the formal legislative process.

It was reported that, in states where .08 was passed, advocacy groups also succeeded at recruiting constituents from the legislators' home districts, and encouraged them to contact their legislators and express their concern and support for the legislation. Advocates said that many lawmakers responded to constituents' concerns, perhaps because re-election votes were cast depending on how those legislators dealt with important issues such as this one.

Supporters of .08 per se engaged the mass media to bring the .08 issue to the public eye, and also to apply pressure on legislators, through editorials by newspaper columnists, radio talk-show coverage, coverage of public hearings, as well as extensive media coverage of impaired driving crashes.

In states where .08 per se was enacted, advocates prepared for the debate well in advance of the beginning of the legislative session. It was reported that, because the legislative session in many states is often very short, whenever the .08 per se issue was not given a high priority from the start, it often became buried by other legislative issues.

Similarly, legislators who opposed .08 per se were often able to kill the bill simply by placing it at the bottom of their priority list. Especially during a short legislative session, bills died because there was "not enough time" to consider them. This was a frequently employed tactic that saved face for the legislators since they never actually had to vote against the bill.

As part of their preparation for the debate, advocates of .08 per se emphasized that they sought to become thoroughly familiar with their opponents and their arguments. It was reported that this method of advance preparation enabled supporters of the measure to respond quickly and effectively when debating the issue or providing answers to questions when testifying before legislators. By planning their responses in advance, supporters said they hoped to not only silence the opposition, but also to provide a unified front, as all advocates were providing the same facts and information.

In states where the legislation failed to pass, opponents were successful in persuading legislators that .08 per se was unnecessary, either because the state already imposed penalties on individuals caught driving at BAC levels below .10, or because other forms of legislation (e.g., increased penalties for repeat offenders) would have a greater impact on public safety.

Opponents of .08 per se were also successful in halting passage of the bill through a variety of legislative tactics. For example, some legislators delayed consideration of the bill by requesting fiscal notes, or other assessments of the financial impact of the legislation. Depending on the timing of these requests, this tactic sometimes served to defeat the measure, if the legislature adjourned before legislative staff could compile the requested information. Other legislators who opposed .08 per se attempted to halt the bill's passage by filing amendments that would significantly alter the impact of the law, for example, by allowing local governments to exempt their communities from enforcing the proposed .08 BAC limit.

Finally, both advocates and opponents emphasized that, whenever possible, they provided positive angles and avoided the use of negative comments to antagonize the other parties in the debate. For example, some supporters of .08 per se claimed that use of this strategy persuaded their opponents to eventually accede or accept a neutral position on this issue. On the other hand, opponents of the measure highlighted the importance of maintaining a positive working relationship with key individuals in government circles and the state legislature.